Thursday, September 16, 2010

Hapner (Native Ecosystems) v. Tidwell (Forest Service)

Sep 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35896. The United States Forest Service (the Service) proposed the Smith Creek Project (the Project) in the Gallatin National Forest to reduce the risk of severe wildfire, to reduce the risk of insect infestation and disease, and to promote habitat diversity. Sharon Hapner, Alliance for Wild Rockies, and Native Ecosystems Council (collectively Plaintiffs) challenged the Project, contending that it violated the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA). After a remand, the district court granted summary judgment to the Service on all of Plaintiffs' claims. The Appeals Court ruled, "We affirm the district court in almost all respects. We reverse on only one claim, holding that the Project violates NFMA by failing to comply with the elk-cover requirement contained in the Gallatin National Forest Plan."
    The Appeals Court explains that the Service argues that even if the Project violates the Gallatin Plan's elk-cover requirement, the error is harmless given the large elk populations in the Project area. But "[i]t is well-settled that the Forest Service's failure to comply with the provisions of a Forest Plan is a violation of NFMA." Native Ecosystems Council, 418 F.3d at 961. "If the Forest Service thinks any provision . . . of the Plan is no longer relevant, the agency should propose amendments to the . . . Plan altering its standards, in a process complying with NEPA and NFMA." Although current elk populations may meet or exceed Montana objectives, those objectives cannot replace Federal management objectives. The Appeals Court reminds that, the Service's own research scientists have written, in guidelines for elk management, "Reducing habitat effectiveness should never be considered
as a means of controlling elk populations. A population over target is not a Forest Service habitat problem." Therefore, the Appeals Court rules, "We therefore conclude that the Service has violated the Gallatin Plan, and NFMA, by not ensuring that the Project complies with the current Gallatin Plan elk-cover requirement. We remand to the Service to remedy this error."
    Access the complete opinion (click here).

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